One should not be surprised to learn, as Adam Liptak reported yesterday, that the Heritage Foundation provides an all-expense paid “training academy” for conservative law students who are heading off to clerk for federal judges. If this is (properly) understood as another instance of institution-building by the conservative legal movement (as documented by Steven Teles, Amanda Hollis-Bruksy, Jefferson Decker, and Ann Southworth), then perhaps the key empirical fact we learned is the Heritage materials cover “originalism, textualism, habeas corpus, the Bill of Rights and other substantive legal and practical subject matter.” That is, the lesson is not, as one liberal law professor intimated in the article, a secret cabal or indoctrination camp. In fact, there’s already a quite public version of Heritage’s training academy run at Georgetown’s law school: Randy Barnett and Larry Solum’s originalism “boot camp.”
The more interesting question is the political-cum-legal work originalism is doing for conservatives. Originalism is the constitutional politics touchstone of movement conservatism and the contemporary Republican Party. It has been invoked in every Republican Party platform from 1992 to 2016 (save for 2004), and in 2012, the platform declared the goal of “A Restoration of Constitutional Government.” That restoration, in addition to the culture war issues that have long been constitutionalized, is a challenge to the New Deal settlement. Originalists advocate for sharply curtailing the scope of the administrative state and they are explicit about accomplishing this goal through the courts. As Don McGahn, the (recently) former White House Counsel in charge of judicial nominations for President Trump, said, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.” Fealty to originalism is now a de facto requirement for circuit and Supreme Court nominations by a Republican president, it is invoked by movement and party actors ranging from President Trump and federal and state governing elites to conservative activists and media commentators (e.g., ALEC, state supreme court justices, Sean Hannity, James Dobson, and Rush Limbaugh), and the conservative mass public.
Originalism has even partially co-opted Democrats. Many point to Elena Kagan’s confirmation hearing concession that “we are all originalist now.” The more telling example is how then-candidate Barack Obama, in June 2008, said he had “always believed” in the individual rights originalist interpretation of the Second Amendment Justice Scalia made law in District of Columbia v. Heller (2008). That is, the originalist interpretation of the Second Amendment—what they (self-servingly) deem the “standard model”—has achieved such political traction that a non-obvious interpretation of the Second Amendment demands concession from opposite-party candidates.
We gain little traction on originalism and the movement conservative institutions that undergird by painting this as an indoctrination camp (does anyone seriously think these law students are being converted from previously heterodox views?). Moreover, the tired internalist debate about the ins-and-outs of originalist interpretation, the construction zone, the “constraint thesis,” and so on, needs to be abandoned. Perhaps at the 10,000 foot level, or in a different historical counterfactual world, originalism may not have an inherent ideological valence. However, empirically this is no longer salable. There are more fruitful ways to think about originalism. Originalism is an important political phenomenon and deserving of our continued attention.